>> Monday, September 21, 2009

It's always difficult to figure out what's going on from news reports regarding a criminal investigation, but this story raises a lot of questions.

First, why isn't Zazi being charged under one of several very broadly-worded federal anti-terrorism statutes? If, as the FBI asserts, Zazi admitted attending courses "at an al-Qaeda training facility in the FATA (tribal) region of Pakistan" and that "he received instruction from al-Qaeda operatives on subjects such as weapons and explosives," those are very serious crimes -- far more serious than giving false statements to investigators.

Second, the crime with which Zazi, his father, and the NYC informant have been charged with is essentially a form of obstruction of justice. But the federal statute that supposedly criminalizes this conduct is a textbook example of a law that's subject to abuse by overzealous prosecutors. Obstruction of justice at its core involves acts like witness tampering, intimidation, and the like. But a catch-all provision in the statute allows making false statements to an investigator to be treated as a free-standing crime.

Note that when they agreed to submit to questioning none of these people were under oath, or had been charged with anything. The "crime" they have supposedly committed is that of giving inaccurate statements to investigators. Meanwhile the investigators are free to lie with impunity to the people they interview.

Third, this kind of case appears to illustrate how easily civil libertarian and due process concerns can get tossed out the window when the magic word "terrorism" is invoked. From what's been reported there appears to be no solid evidence of an actual plot of any sort, or the existence of real weapons, or indeed anything beyond some suspicious movements and conversations. This probably explains why the suspects haven't been charged with any crime other than that of failing to cooperate appropriately with their interrogators. (Note too the absurdly transparent pretext that Zazi's rental car was stopped by the NYPD as part of a "random drug stop.").

Now of course it's always possible that Zazi is part of an actual Al Qaeda cell of some sort, as opposed to say a clownish amateur who hasn't done enough to be charged with a real crime. But then he ought to be charged with one.